1. This revision petition has been filed by a tenant whose ejectment has been ordered both by the Appellate Authority as well as the Rent Controller.
2. The main ground of ejectment, with which we are concerned in this petition, is that the shop in dispute, which has been given on rent, was closed for the last 17 months and, consequently, the tenant was liable to ejectment under Section 13(2)(v) of the East Punjab Urban Rent Restriction Act, hereinafter called the Act, which says:
(2) 'A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied--
x x x x x x (v) that where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:x x x'.
3. The tenant's position was that he was a carpenter and had throughout been using the shop for doing his work. This plea, after appraisal of the evidence produced by the parties, was rejected both by the Rent Controller and the Appellate Authority. In this revision petition a new ground for the first time has been taken that the tenant is not liable to ejectment, because even if he was not using the shop for his carpentry work, he would still be deemed to be in its occupation, as he had put a lock thereon after some of his articles were placed therein. As I have said, this was not his case either in the written statement or when the evidence was being recorded or before the Rent Controller or even before the Appellate Authority.
4. Learned counsel is relying on the averments in the application for ejectment itself, in which it was stated that the sub-tenant had placed some articles in the shop and then put a lock thereon, and thereafter the shop had remained closed for the last 17 months. It may be stated that the ground for eviction on the basis of sub-letting was not pursued by the landlord. Learned counsel submits that if a tenant merely puts a lock on the shop after placing some articles therein, he will still be deemed to be in its occupation within the meaning of this expression in Section 13(2)(v) of the Act, even if he does not open it for 17 months. He concedes that the case set up by his client, namely, that he was using the shop for doing his work, had not been established and further that the supply of the electricity was disconnected by the department by cutting the wires from outside the shop. The only question is whether or not on the facts mentioned above, it can be said that the tenant had not ceased to occupy the shop as mentioned in Section 13(2)(v) of the Act.
5. This precise point has been the subject-matter of some decisions in this Court. In Smt. Shakuntala Bawa v. Ram Parshad, 1963-65 Punj LR 103, Falshaw, C. J., had an occasion to deal with this matter and he observed:
'Where for all practical purposes the tenant had ceased to reside in the house in dispute which was situate in Hissar and had gone to reside in Delhi, only visiting Hissar very occasionally for short periods and even then not using the house in the sense of sleeping there: Held, that, the mere presence of the furniture and willingness to pay rent does not constitute occupation within the meaning of Section 13(2) (v) of the East Punjab Urban Rent Restriction Act. The word 'occupation' means occupation in the sense of actual user.'
6. In this authority, he relied on an earlier decision of Harnam Singh, J., in Baij Nath v. Badhawa Singh, 1956-58 Punj LR 236, in which the following observations of Ramaswami, J., (C. P. Sinha, J., concurring) in Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad, AIR 1951 Pat 469 were referred to:
'As observed in Rex. v. St. Pancras (1877) 2 QBD 581 at p. 588:--
Occupation includes possession as its primary element but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of vacant house is in possession and may maintain trespass against any one who invades it; but as long as he leaves it vacant he is not in occupation; nor is he an occupier.'
7. The decision of Falshaw, C. J. was followed by D. K. Mahajan, J. in Kimti Lal v. Nanak Chand, 1967-69 Punj LR 799, where it was observed that the word 'occupation' as used in Section 13(2)(v) of the Act meant actual user of the building, and mere presence of furniture did not amount to occupation. It will thus be seen that this Court has consistently taken the view that the word 'occupation' in Section 13(2)(v) means the actual user of the building.
8. Learned counsel for the petitioner relied on an unreported decision of Harbans Singh Acting, C. J., in Attar Chand v. Mohinder Singh, Civil Revn. No. 798 of 1968, decided on 14-8-1969 (Punj).
9. It may be stated that the learned Judge in that case was not dealing with the provisions of Section 13(2)(v) of the Act. He was concerned with the interpretation of Section 13(4) of the Act. While dealing with that matter, the learned Judge came to the conclusion if the landlord did go to occupy the house some moths after he took possession and then vacated it for the purpose of repairs and thereafter he went to occupy it himself and it was proved on the record that he had not given its possession to anybody and not let it to any tenant or given o anyone for even temporary occupation, then under those circumstances, it could not be said that he did not himself occupy it within the meaning of that expression in Section 13(4) of the Act. This ruling, in my opinion, has no application to the facts of the instant case.
10. Following the earlier decision of this Court, which had interpreted Section 13(2)(v) of the Act, I would dismiss this petition, but leave the parties to bear their own costs in this Court.
11. Petition dismissed.